Computerworld reported last week that a judge in Illinois ruled that a couple who lost $26,500 when their bank account was breached can sue the bank for negligence for not implementing "state-of-the-art" security measures which would have prevented the breach.
While bank credit card issuers have been suing credit card processors and retailers regularly to recoup losses due to breaches, this is the first time that I am aware of that a judge has ruled that a customer can sue the bank for negligence.
The plaintiffs sued Citizens Financial Bank for negligence because it had not implemented multifactor authentication. The timeline is important here. The Federal Financial Institutions Examination Council (FFIEC) issued multifactor authentication guidelines in 2005. By 2007, when the plaintiffs' breach occurred, the bank had still not implemented multifactor authentication. The judge, Rebecca Pallmeyer of the District Court of Northern Illinois, found this two year delay unacceptable.
Two interesting complications - (1) The account from which the money was stolen was from a home equity line of credit account, not a deposit or consumer asset account. (2) This credit account was linked to the plaintiffs' business checking account. I discussed the differences between consumer and business account liability here. Fortunately for the plaintiffs, the judge brushed these issues aside and focused on the lack of multifactor authentication.
One issue that was not addressed - where was Fiserv in all of this? They are the provider of the online banking software used by Citizens Financial Bank. Were they offering some type of multifactor authentication? I would assume yes, although I have not been able to confirm this.
In conclusion, attorney David Johnson makes clear that this ruling increases the risk to banks (and possibly other organizations responsible for protecting money and/or other assets of value) if they do not implement state-of-the-art security measures.